The document discusses the issue of finding countries to accept acquitted persons from the International Criminal Tribunal for Rwanda (ICTR) due to the UNHCR's broad interpretation of the refugee status exclusion clause. Specifically, it argues that while an indictment is sufficient for exclusion, a full acquittal is not sufficient to rebut the presumption of excludability, creating a paradox. It proposes that considering the proportionality of exclusion in cases of full acquittal, as already allowed in the Refugee Convention, would resolve this by weighing the acquittal against exclusion. Currently, three fully acquitted ICTR persons—Gratien Kabiligi, André Ntagerura, and Protais Zigitany

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The Status of Acquitted Persons and the Exclusion Paradox
Written by Carmel Shenkar (September 2010)
Finding a country of residence for ICTR acquitted persons is increasingly urgent as the Tribunal
moves towards its completion. Despite significant efforts on behalf of the Registrar, there are
currently three acquitted persons whose relocations are still pending: Gratien Kabiligi, André
Ntagerura, and Protais Zigitanyirazo. What should have been a natural cooperation between the
ICTR and the UN High Commissioner for Refugees, is in reality impeded by an over expanded
interpretation given by the UNHCR to the exclusion clause in the Convention Relating to the
Status of Refugees, 1951 (hereinafter “1951 Convention”).
Article 1(f) of the 1951 Convention obliges States and the UNHCR to deny the benefits of
refugee status to certain persons who would otherwise qualify as refugees. This provision is
commonly referred to as “the exclusion clause”. The article states that:
The provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
a. he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make provision
in respect of such crimes;
b. he has committed a serious non-political crimes outside the country of
refuge prior to his admission to that country as a refugee;
c. he has been guilty of acts contrary to the purposes and principles of the
United Nations.
According to the UNHCR Guidelines on International Protection: Application of the Exclusion
Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (HCR/GIP/03/05)
of 4 September 2003 (hereinafter: UNHCR Guidelines), the rationale for the exclusion clause,
which should be borne in mind when considering its application, is that certain acts are so grave
as to render their perpetrators undeserving of international protection as refugees. Their primary
purpose is to deprive those guilty of heinous acts, and serious common crimes, of international
refugee protection and to ensure that such persons do not abuse the institution of asylum in order
to avoid being held legally accountable for their acts. However, given the possible serious

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consequences of exclusion, it is important to apply the clause with great caution and only after a
full assessment of the individual circumstances of the case. The exclusion clause should,
therefore, always be interpreted in a restrictive manner (UNHCR Guidelines, para. 2).
Only where it has been established that an applicant fulfils the inclusion criteria, the question
may arise as to whether he may not be covered by the terms of one or more of the exclusion
clauses. Therefore, the exclusion clauses may only come to force after it had been determined
that the person in question does fulfill the inclusion criteria and thus qualifies as a refugee. This
understanding is crucial to the rest of the argument.
The burden of proof with regard to exclusion rests with the State (or UNHCR) and, in all refugee
determination proceedings, the applicant should be given the benefit of the doubt. However, the
UNHCR indicates that when an individual has been indicted by an international criminal
tribunal, or where individual responsibility is presumed, the burden of proof is reversed, creating
a rebuttable presumption of excludability (UNHCR Guidelines, para. 34). The question
therefore arises in our case as to what can indeed rebut this presumption.
UNHCR emphasizes that it is not necessary for an applicant to have been convicted of the
criminal offence, nor does the criminal standard of proof need to be met in order to satisfy the
standard of proof under article 1(f). Confessions and testimony of witnesses may suffice if they
are reliable (UNHCR Guidelines, para. 35).
A paradox is therefore created resulting in a burden which is impossible to rebut and an
irreversible determination of excludability: an indictment by an international criminal court is a
sufficient condition to exclude an applicant from a refugee status, but a full acquittal from all
charges indicated in that indictment is not a sufficient condition to rebut the presumption of
excludability.
This resulting situation is in contradiction with the object and purpose of the 1951 Convention.
Two main safeguards are enshrined in the Convention and its application to ensure the object and
purpose of the exclusion clause will be maintained and the exclusion provisions interpreted in a
restrictive manner: first, when information casting doubt on the basis on which an individual has
been excluded from refugee status comes to light, this should lead to reconsideration of
eligibility for refugee status (UNHCR Guidelines, para. 7). Second, the incorporation of a
proportionality test when considering exclusion and its consequences. The proportionality

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consideration provides a useful analytical tool to ensure that the exclusion clauses are applied in
a manner consistent with the overriding humanitarian object and purpose of the 1951 Convention
(UNHCR Guidelines, para. 24).
These two procedural safeguards are consistent with other human rights developments which
took place since 1951. Present day international human rights standards emphasize central
notions such as the presumption of innocence, fair trial guarantees and the rule of law.
International criminal law has also witnessed some major developments in this same direction. A
lot had been changed since 1951, and although the exclusion clause explicitly indicates “serious
reasons for considering” as a sufficient threshold for exclusion; as long as a full acquittal remains
insufficient threshold for reconsideration, it can be argued strongly that this standard is
inconsistent with present day human rights legal standards.
A different solution is however possible, the legal basis of which already exists in the
Convention and UNHCR Guidelines: an applicant who fulfills the inclusion criteria qualifies as a
refugee. In case the individual has been indicted by an international criminal tribunal, there is a
rebuttable presumption of excludability and the burden of proof rests with the applicant.
However, in case of full acquittal granted by an international criminal tribunal, the
proportionality test (which usually relates to article 1(f)(b)) should be taken into consideration
for the purpose of individual status determination, so the gravity of the reason for exclusion is
weighed against the consequences of exclusion.
Therefore the insertion of the proportionality consideration in cases of full acquittals offers a way
out of the unavoidable paradox through legal means already existing in the Convention: a full
acquittal alters the balance of proportionality and put more weight on the consequences of
excludability in relation to the gravity of the offence in the specific circumstances of the case.
This solution is consistent with international human rights standards and conforms to the object
and purpose of the exclusion clause, since it is obviously not a case of a person seeking refugee
status as a means to avoid being held legally accountable for his acts.
Of the eight persons acquitted by the ICTR, there are three whose relocation is still pending. In
all three cases the exclusion paradox had created a situation where although fully acquitted by

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the tribunal, in large part due to the lack of sufficient evidence to prove the charges in the
indictment, are still excluded from refugee status because of that same indictment.
Zigiranyirazo was transferred to the Tribunal on 3 October 2001. The Appeals Chamber reversed
his convictions for genocide and extermination as a crime against humanity and entered a verdict
of acquittal on 16 November 2009, stating in fact that the Trial Judgment misstated the principles
of law governing the distribution of the burden of proof with regards to alibi and seriously erred
in its handling of the evidence.1
Kabiligi was arrested and transferred to the ICTR on 18 July 1997. The Trial Chamber acquitted
Kabiligi of all charges on 18 December 2008, stating that the Prosecution did not prove beyond
reasonable doubt that Kabiligi was responsible either directly or as a superior for any of the
crimes alleged against him in the indictment.2
The Prosecution did not appeal the judgment.
André Ntagerura was transferred to the ICTR on 23 January 1997. Ntagerura was acquitted of
all charges by the Trial Chamber on 25 February 2004 and the judgment was affirmed by the
Appeal Chamber on 7 July 2006, with a lone dissenter emphasizing, while concurring entirely
with the decision, that not only is the Indictment vague, but it must also be declared null and void
as none of the crimes with which the Accused is charged is sufficiently pleaded and the scope of
the charges is not sufficiently defined.3
1
Protais Zigiranyirazo v. the Prosecutor, Judgment, Appeals Chamber, ICTR-01-73-A, 16 November 2009, para.
75.
2
The Prosecutor v. Bagosora et al., Judgment and Sentence, ICTR-98-41-T, 18 December 2008, paras. 1976-1986,
2056, 2110-2112, 2159-2162, 2187, 2195, 2204, 2214, 2225, 2246, and 2255.
3
The Prosecutor v. Ntagerura et al., Judgment, Appeal Chamber, ICTR-99-46-A, 7 July 2006, Dissenting Opinion
of Judge Schomburg, paras. 1-2.